Atkinson, Jane E. v. Kestell, Robert J. ( 1998 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 8, 1998 Decided October 9, 1998
No. 97-7181
Janet E. Atkinson,
Appellant
v.
The Inter-American Development Bank, et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(97cv00239)
Janet E. Atkinson, appearing pro se, argued the cause and
filed the briefs.
William D. Rogers argued the cause for appellee The
Inter-American Development Bank.* On the brief were
Alexander E. Bennett and Nancy L. Perkins.
Before: Edwards, Chief Judge, Silberman and Randolph,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Silberman.
Silberman, Circuit Judge: This case involves a well-known
method of enforcing a judgment and a little-known immunity
from judicial process. Appellant, in an effort to enforce two
state court judgments against her former husband by gar-
nishing his wages, sought a declaratory judgment in the
district court that her husband's employer, a financial institu-
tion protected by the International Organizations Immunities
Act, is not immune from garnishment proceedings under that
Act. The district court, concluding that the employer was
entitled to immunity under the Act, dismissed the declaratory
judgment action. We affirm.
I.
In 1993, a Maryland state court granted appellant Janet E.
Atkinson a divorce from her husband, Robert J. Kestell. As
part of the judgment of divorce, appellant was awarded
alimony of $1,350 per month for four years; child support of
$2,850 per month; $20,000 in attorney's fees; profits from
rental property in the amount of $1,221.91; and a monetary
award of $111,475.00 to compensate her for her interest in
marital property controlled by her husband. In 1996, the
state court found Kestell in contempt of court for failure to
pay alimony and child support during part of 1995, deter-
mined that his accrued arrearages totaled $12,600, and en-
tered judgment for that amount.
Appellant's attempt to enforce these judgments gave rise to
the instant litigation.1 Kestell moved to Jamaica, taking with
__________
* Robert J. Kestell was named as a defendant in appellant's
complaint in the district court, but did not appear at any stage in
the district court action or before us.
1 Kestell filed for Chapter 7 bankruptcy in Maryland shortly after
the 1995 divorce decree. Appellant was the largest unsecured
him all of his assets except one: the future wages that would
be owed to him by his employer, appellee Inter-American
Development Bank, an international financial institution head-
quartered in Washington, D.C. At Kestell's request and from
salary due him, the Bank has paid appellant a total of $4,700
per month--the $1,350 per month alimony and $2,850 per
month child support plus $500 per month toward his past
arrearages.2 But Kestell's cooperation goes only so far. He
has steadfastly refused to pay appellant her marital property
award of $111,475, either from his Bank salary or otherwise.
Accordingly, appellant sought to augment Kestell's voluntary
monthly payments by garnishing the remainder of his salary.
Were Kestell's employer a run-of-the-mine private firm
located in the District of Columbia, a garnishment proceeding
would pose few difficulties; appellant would bring her Mary-
land judgments to D.C. Superior Court and proceed against
the garnishee (i.e., the employer) under the statutory scheme
found in D.C. Code ss 16-501 et seq. But the Bank is not a
run-of-the-mine firm; rather, it is an institution that has been
designated by executive order for protection as an interna-
tional organization under the International Organizations Im-
munities Act (IOIA), Ch. 652, Title I, 59 Stat. 669 (1945)
(codified as amended at 22 U.S.C. ss 288 et seq. (1994)). See
Exec. Order No. 10,873, 25 Fed. Reg. 3,097 (1960); Exec.
Order No. 11,019, 27 Fed. Reg. 4,145 (1962). The IOIA
entitles designated entities to "enjoy the same immunity from
suit and every form of judicial process as is enjoyed by
foreign governments, except to the extent that such organiza-
tions may expressly waive their immunity for the purpose of
any proceedings or by the terms of any contract." 22 U.S.C.
__________
creditor in that bankruptcy case. Kestell's bankruptcy petition was
ultimately dismissed under 11 U.S.C. ss 707(b) and 105(a) because
"the sole purpose of the filing was to avoid the payment of the sums
owing to his ex-wife on account of the state court judgment." In re
Kestell, 99 F.3d 146, 150 (4th Cir. 1996).
2 As a result of the instant litigation, Kestell has agreed to have
the Bank pay appellant an additional $1,710 per month from his
salary.
s 288a(b). And a provision of the Inter-American Develop-
ment Bank Act grants the Bank the right to remove any
action brought against it from state court into federal court.
22 U.S.C. s 283f.
This latter obstacle--the likely inability to proceed in state
court--would not of itself hinder appellant's garnishment
proceeding, as a federal court can adjudicate garnishment
proceedings by applying the local statutory scheme. See Fed.
R. Civ. P. 69(a). Recognizing the more substantial hurdle of
the Bank's immunity under the IOIA, appellant brought this
declaratory judgment action in the district court to establish
that the Bank had waived its immunity, and in the alternative
that the Bank's immunity even absent waiver does not pre-
clude a garnishment proceeding to enforce a divorce-related
judgment incurred by an employee of a designated interna-
tional organization such as the Bank. The Bank moved to
dismiss the action, invoking its status as a protected organiza-
tion under the IOIA and arguing that it had not waived its
immunity with respect to this type of proceeding. Reviewing
several cases in which we interpreted the extent to which the
articles of agreement of the Bank and similar international
organizations constitute a waiver of immunity, the district
court granted the Bank's motion.
II.
We begin, as the district court implicitly did, by assuming
arguendo that appellee is entitled to absolute immunity under
the IOIA and addressing appellant's contention that appellee
has waived its immunity with respect to a proceeding to
garnish one of its employee's wages.3 Specifically, appellant
points to the following provision in the Bank's articles of
agreement:
Actions may be brought against the Bank only in a court
of competent jurisdiction in the territories of a member
in which the Bank has an office, has appointed an agent
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3 Our assumption here is just that--an assumption. We take up
the scope of immunity under the IOIA in Part III.
for the purpose of accepting service or notice of process,
or has issued or guaranteed securities.
Agreement Establishing The Inter-American Development
Bank, Apr. 8, 1959, Art. XI, Section 3, 10 U.S.T. 3068, 3095.
In Lutcher S.A. Celulose e Papel v. Inter-American Develop-
ment Bank, 382 F.2d 454, 457 (D.C. Cir. 1967), we construed
this provision as not merely a "venue provision for actions
resulting from individual waivers; rather it is a provision
waiving immunity and laying venue for the suits permitted."
The parties disagree on whether this waiver is broad
enough to encompass a garnishment proceeding such as the
one appellant hopes to bring. While the provision might be
read to establish a blanket waiver of immunity from every
type of suit not expressly prohibited elsewhere in the articles
of agreement (only suits by members are expressly prohibit-
ed), we rejected that reading in Mendaro v. World Bank, 717
F.2d 610, 614-15 (D.C. Cir. 1983) (citing Lutcher, 382 F.2d at
456) (interpreting identical language in the agreement estab-
lishing the World Bank). Instead, we adopted a test for
determining when, in the context of a particular suit against
the Bank, Section 3 should be construed as a waiver of
immunity: "Since the purpose of the immunities accorded
international organizations is to enable the organizations to
fulfill their functions, applying the same rationale in reverse,
it is likely that most organizations would be unwilling to
relinquish their immunity without receiving a corresponding
benefit which would further the organization's goals." Id. at
617.4
We then applied this test to hold that the World Bank had
not waived its immunity from a Title VII sexual harassment
suit by an employee. See id. at 618-19. We observed that
__________
4 The agreement states that "[t]he purpose of the Bank shall be
to contribute to the acceleration of the process of economic develop-
ment of the member countries, individually and collectively." Arti-
cle I, s 1, 10 U.S.T. at 3072. The Bank's functions include promot-
ing the investment of public and private capital for development
purposes; utilizing its own capital and other funds raised by it;
encouraging private investment; assisting member countries in
efficient use of their resources; and providing technical assistance
for the implementation of development plans and projects. Id. s 2.
such a waiver would expose the Bank to disruptive interfer-
ence with its employment practices by requiring the Bank to
adopt the local employment policies of each of its member
countries, which would imply devastating administrative
costs. Nor would those costs be justified by the benefit of
attracting highly qualified staff members, in light of the
Bank's already established administrative tribunal to resolve
employees' contract grievances. We contrasted employee
suits with suits based on commercial transactions with the
outside world, where the benefits of a waiver would outweigh
the costs: "If this immunity were not waived[,] the Bank
would be unable to purchase office equipment or supplies on
anything other than a cash basis.... Such a restriction
would unreasonably hobble its ability to perform the ordinary
activities of a financial institution operating in the commercial
marketplace." Id. at 618; see also id. at 620 (explaining
Lutcher's holding that the Bank had waived suits by borrow-
ers on the ground that such waiver "would directly aid the
Bank in attracting responsible borrowers").
Appellant seeks to slip around the Mendaro test by assert-
ing that "[a] wage garnishment action ... does not threaten
the bank's ability to fulfill its purpose and the functions with
which it was entrusted." In her view, the Bank's immunity
should be construed as waived unless the particular type of
suit would impair the Bank's objectives; appellant contends
that compliance with a garnishment order is a "simple, cleri-
cal operation" that would not cause such impairment. We
think, however, that our formulation of the Mendaro test
supports the opposite default rule: the Bank's immunity
should be construed as not waived unless the particular type
of suit would further the Bank's objectives. In Mendaro, we
deemed the benefit of attracting talented employees by virtue
of permitting suits by employees to be minimal given that
employees already could invoke an internal grievance mecha-
nism. Here, waiver of immunity from garnishment proceed-
ings, unlike waiver of immunity from employee suits, provides
no conceivable benefit in attracting talented employees; in
fact, garnishment of an employee's wages makes the (pro-
spective) employee worse off, not better off. This clear lack
of benefit--indeed, disadvantage--of a waiver of immunity
from garnishment proceedings compels the conclusion that
Section 3 of the agreement should not be construed to waive
the Bank's immunity in this case.
Moreover, although we need not consider the costs side of
the balance, we are skeptical of appellant's view that the costs
imposed on a garnishee are minimal. In the analogous
context of attempts to garnish the wages of federal employ-
ees, the Supreme Court long ago observed that the expense
of defending such garnishment proceedings and complying
with garnishment orders "might be fatal to the public ser-
vice," Buchanan v. Alexander, 45 U.S. (4 How.) 20, 20 (1846),
a concern that has been echoed more recently, see Stena
Rederi AB v. Comision de Contratos, 923 F.2d 380, 392 (5th
Cir. 1991) (observing that if garnishment were allowed
"against foreign governmental agencies with operations in the
United States to prosecute claims against third parties, the
agencies would be required repeatedly to appear in court to
protect their own relations with the third parties"); 30 Am.
Jur. 2d Executions and Enforcement of Judgments s 646
(1994) (footnotes omitted) ("Garnishment statutes often exhib-
it concern for the protection of both the garnishee and other
claimants who may be affected by the litigation, since a
stranger to the proceedings in which a judgment has been
obtained is an innocent third party who may be exposed to
the inconvenience, hazards, or expense of extended litiga-
tion.").
III.
There remains the question whether the Bank as a matter
of statute enjoys immunity from garnishment proceedings. If
the answer is no, then it does not matter whether it can be
said that the Bank did not "waive" that immunity. The
district court thought it unnecessary to reach this issue, see
Mem. Op. (July 11, 1997) at 5 n.4 ("Because this case turns on
the extent to which the language of the Bank's Articles of
Agreement waives the Bank's immunity, it is not necessary to
consider whether the Bank would, in the absence of waiver,
enjoy absolute immunity under the IOIA, or the more re-
stricted immunity for noncommercial activities contemplated
by the Foreign Sovereign Immunities Act...."), undoubtedly
because of our similar statement in Mendaro, 717 F.2d at 618
n.54. We overlooked, however, that only if we concluded that
the Bank had waived its immunity would we avoid the need to
consider the scope of the Bank's immunity ab initio.
Appellant's first claim is that the IOIA does not contem-
plate immunity from garnishment proceedings. She argues
there is a de minimis exception to the immunity granted by
the IOIA, and that garnishment proceedings fall within that
exception because the burden of being a garnishee is minimal.
Yet even assuming the burden were minimal, a point on which
we expressed doubts above, we think the plain language of
the IOIA refutes the notion of a de minimis exception. The
IOIA speaks in terms of "immunity from suit and every form
of judicial process," 22 U.S.C. s 288a(b) (emphasis added),
language which admits of no exception for "unobtrusive"
judicial processes. Cf. Stena Rederi AB v. Comision de
Contratos, 923 F.2d 380, 392 (5th Cir. 1991) (holding that
garnishment proceedings are not excepted from the general
jurisdictional immunity provided to foreign sovereigns by 28
U.S.C. s 1604, which provides that "a foreign state shall be
immune from the jurisdiction of the courts of the United
States and of the States.").
Now to the more general, and more important, dispute
between the parties--the scope of the immunity provided by
the IOIA. The Bank submits that immunity under the IOIA
is absolute and therefore poses a bar to any suit, regardless
of its origin or subject matter. Appellant rejects that notion,
contending that the IOIA, by virtue of its reference to "the
same immunity from suit and every form of judicial process
as is enjoyed by foreign governments," 22 U.S.C. s 288a(b)
(emphasis added), incorporates the commercial activities ex-
ception to immunity,5 a central doctrine of the modern law
governing the immunity of foreign governments from judicial
__________
5 We explicitly left this issue open in Broadbent v. Organization
of Am. States, 628 F.2d 27, 32-33 (D.C. Cir. 1980).
process. She proceeds to argue that appellee's payment of
wages to Kestell constitutes a commercial activity, so that her
garnishment proceeding--a suit appellant depicts as arising
out of that activity--is not barred.
We begin with the text of the IOIA. The operative provi-
sion states:
International organizations, their property and their as-
sets, wherever located, and by whomsoever held, shall
enjoy the same immunity from suit and every form of
judicial process as is enjoyed by foreign governments,
except to the extent that such organizations may express-
ly waive their immunity for the purpose of any proceed-
ings or by the terms of any contract.
22 U.S.C. s 288a(b) (emphasis added). "International organi-
zation" is defined as:
a public international organization in which the United
States participates ... and which shall have been desig-
nated by the President through appropriate Executive
order as being entitled to enjoy the privileges, exemp-
tions, and immunities provided in this subchapter.
22 U.S.C. s 288. Once the President issues such an order,
his role under the IOIA does not cease. Rather, the Presi-
dent retains authority "by appropriate Executive Order" to
"withhold or withdraw from any such organization ... any of
the privileges, exemptions and immunities provided for in this
subchapter ... or to condition or limit the enjoyment by any
such organization ... of any such privilege, exemption, or
immunity." Id. And in the extreme case, the President is
authorized to "revoke the designation of any international
organization." Id.The key phrase at issue in this case is the "same immunity
... as is enjoyed by foreign governments." 22 U.S.C.
s 288a(b) (emphasis added). Obviously, the 1945 Congress
was legislating in shorthand, referring to another body of
law--the law governing the immunity of foreign govern-
ments--to define the scope of the new immunity for interna-
tional organizations. But did the 1945 Congress mean to
refer to the law governing the immunity of foreign govern-
ments as it existed in 1945, or to incorporate as well--as
appellant claims--subsequent (i.e., post-1945) changes to that
body of law? When Congress enacted the IOIA in 1945,
foreign sovereigns enjoyed--contingent only upon the State
Department's making an immunity request to the court--
"virtually absolute immunity." Verlinden B.V. v. Central
Bank of Nigeria, 461 U.S. 480, 486 (1983); see Robert B. von
Mehren, The Foreign Sovereign Immunities Act of 1976, 17
Colum. J. Transnat'l L. 33, 41 (1978). In 1952, however, the
landscape changed when the State Department announced its
adoption of the restrictive theory of immunity, under which
immunity is confined to suits involving the foreign sovereign's
public acts, and does not extend to cases arising out of a
foreign state's strictly commercial acts. Verlinden, 461 U.S.
at 487 (citing Letter from Jack B. Tate, Acting Legal Adviser,
Department of State, to Acting Attorney General Philip B.
Perlman (May 19, 1952)). The State Department, following
this restrictive theory, continued to make suggestions of
immunity in appropriate cases, and the courts continued to
defer to those suggestions as they had done prior to 1952. In
1976, Congress addressed problems of political pressure and
non-uniformity inherent in this dual branch scheme by codify-
ing the principle of restrictive immunity and shifting respon-
sibility for its application to the courts. Foreign Sovereign
Immunities Act of 1976, Pub. L. No. 94-583, 90 Stat. 2892(codified as amended at 28 U.S.C. ss 1602-1611).
As support for her contention that the 1945 Congress
intended to incorporate in the IOIA post-1945 changes to the
law governing the immunity of foreign sovereigns, appellant
points us to this canon of interpretation: "A statute which
refers to a subject generally adopts the law on the subject as
of the time the law is enacted. This will include all the
amendments and modifications of the law subsequent to the
time the reference statute [i.e., the statute that makes the
reference] was enacted." 2B Sutherland Statutory Con-
struction s 51.08, at 192 (Norman J. Singer, 5th ed. 1992)
(footnotes omitted) (emphasis added). Before resorting to
this or any other canon, however, we must search for indica-
tions of legislative intent. As the Supreme Court has ob-
served, canons of statutory interpretation are principally
"useful in close cases, or when statutory language is ambigu-
ous." United States v. Monsanto, 491 U.S. 600, 611 (1989);
see also United States v. United Mine Workers of Am., 330
U.S. 258, 314 (1947) (Frankfurter, J., concurring) ("[A] canon,
like other generalities about statutory construction, is not a
rule of law. Whatever persuasiveness it may have in constru-
ing a particular statute derives from the subject matter and
the terms of the enactment in its total environment."); Unit-
ed States v. Espy, 145 F.3d 1369, 1371 (D.C. Cir. 1998) ("Since
we do not find the statute in the least bit ambiguous, we have
no need to employ, nor any legitimate purpose in employing,
canons of construction designed to reconcile confusing lan-
guage.").
The text of the IOIA unfortunately provides no express
guidance on whether Congress intended to incorporate in the
IOIA subsequent changes to the law governing the immunity
of foreign sovereigns. That does not mean, however, that the
statutory text is completely unhelpful. As explained above,
the IOIA sets forth an explicit mechanism for monitoring the
immunities of designated international organizations: the
President retains authority to modify, condition, limit, and
even revoke the otherwise absolute immunity of a designated
organization. See 22 U.S.C. s 288. It seems, therefore, that
Congress was content to delegate to the President the re-
sponsibility for updating the immunities of international orga-
nizations in the face of changing circumstances. This built-in
mechanism for updating the IOIA undermines appellant's
claim that Congress intended a different updating mecha-
nism: automatic alteration of the scope of immunity under
the IOIA in accordance with developments in the law govern-
ing the immunity of foreign sovereigns.
The legislative history supports this reading. The Senate
Report describes the provision delegating to the President
the authority to modify an organization's immunities as "per-
mit[ting] the adjustment or limitation of the privileges in the
event that any international organization should engage, for
example, in activities of a commercial nature." S. Rep. No.
861, 79th Cong., 1st Sess., at 2 (1945). Not only does this
description of the President's role suggest that responsibility
for modifying immunity granted by the IOIA rests with the
President rather than with an evolving separate body of law
(even if that separate body of law would be heavily influenced
by the President acting through the State Department), it
does so with specific regard to the notion of restrictive
immunity for commercial activities. The concerns that moti-
vated the State Department to adopt the restrictive immunity
approach to foreign sovereigns in 1952 (and Congress to
codify those principles in the FSIA in 1976) were apparently
taken into account by the 1945 Congress.
In light of this text and legislative history, we think that
despite the lack of a clear instruction as to whether Congress
meant to incorporate in the IOIA subsequent changes to the
law of immunity of foreign sovereigns, Congress' intent was
to adopt that body of law only as it existed in 1945--when
immunity of foreign sovereigns was absolute.6 (As we noted
above, absolute immunity under the IOIA is merely a baseline
that is subject to modification by executive order.) The
canon appellant urges on us is but one factor in discerning
Congress' intent, and we think it is outweighed by the text
and legislative history in this case.
There remains one final issue: the impact, if any, of the
1976 enactment of the FSIA. The FSIA explicitly makes
reference to the IOIA, a reference that appellant views as
providing support for her claim that the IOIA incorporates
post-1945 changes to the law governing the immunity of
foreign sovereigns. 28 U.S.C. s 1611 provides:
Notwithstanding the provisions of section 1610 of this
chapter, the property of those organizations designated
by the President as being entitled to enjoy the privileges,
exemptions, and immunities provided by the [IOIA] shall
not be subject to attachment or any other judicial pro-
cess impeding the disbursement of funds to, or on the
order of, a foreign state as a result of an action brought
in the courts of the United States.
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6 We accordingly disapprove of the contrary holding in Rendall-
Speranza v. Nassim, 932 F. Supp. 19, 23-25 (D.D.C. 1996).
Appellant draws two inferences, one general and one specific,
from this passage. The general is that Congress' reference
to the IOIA, in the course of this codification of the restrictive
immunity doctrine for foreign sovereigns, indicates that Con-
gress was aware of the impact of the restrictive immunity
doctrine on the IOIA; by choosing not to revise the IOIA,
Congress expressed its intent to apply restrictive immunity to
international organizations under the IOIA. We think this
argument has little merit. Congress does not express its
intent by a failure to legislate, United States v. Estate of
Romani, 118 S. Ct. 1478, 1488 (1998) (Scalia, J., concurring),
and even if it did, the will of a later Congress as to the
meaning of a law enacted by an earlier Congress is of little
weight, United States v. X-Citement Video, Inc., 513 U.S. 64,
77 n.6 (1994); Estate of Romani, 118 S. Ct. at 1489 (Scalia, J.,
concurring) ("If the enacted intent of a later Congress cannot
change the meaning of an earlier statute, it should go without
saying that the later unenacted intent cannot possibly do
so.").
Appellant's alternative argument is that 28 U.S.C. s 1611,
insofar as it prohibits "attachment or any other judicial
process impeding the disbursement of funds [held by an
IOIA-protected entity] to ... a foreign state as the result of
an action brought in the courts of the United States or of the
States" (emphasis added), gives rise to a negative implication
that funds held by an IOIA-protected entity for disbursement
to a non-foreign state (such as an employee) are not protected
from attachment or garnishment. As best we can tell, appel-
lant relies on the canon expressio unius est exclusio alterius
in making this argument. But we think the inference appel-
lant seeks to draw is rather strained. As we recently ob-
served, "the force [of the expressio unius canon] in particular
situations depends entirely on context." Shook v. District of
Columbia Fin. Responsibility and Management Assistance
Auth., 132 F.3d 775, 782 (D.C. Cir. 1998). Here, context
suggests, if anything, that the 1976 Congress wished to clarify
that international organizations deserve special protection.
In ss 1609 through 1611 of the FSIA, Congress focused on
the issue of when and how judgments could be enforced
against the property of foreign states. Section 1609 states
the general rule that the property of foreign states is immune
from attachment or execution, and s 1610 sets forth excep-
tions to the general rule that are roughly analogous to the
commercial activity exception to jurisdictional immunity in
s 1605. Section 1611 then provides that notwithstanding
s 1610, a judgment creditor cannot execute upon funds held
by international organizations for disbursement to the foreign
state judgment debtor. Thus, it is clear that Congress'
emphasis in these provisions of the FSIA was on the situation
of a foreign state as judgment debtor, not on other types of
judgment debtors. The FSIA is "beside the point" because it
does not "reflect any direct focus by Congress upon the
meaning of the earlier enacted provisions" of the IOIA.
Almendarez-Torres v. United States, 118 S. Ct. 1219, 1227
(1998) (citations omitted).
IV.
Even if we concluded that the IOIA's reference to the law
of immunity of foreign sovereigns is an evolving one that
incorporates the commercial activities exception to immunity,
we think appellant's garnishment proceeding would not come
within that exception. As relevant here, the FSIA's formula-
tion finds the commercial activities exception satisfied where
"the action is based upon a commercial activity carried on in
the United States by the foreign state." 28 U.S.C.
s 1605(a)(2). To determine whether an action is "based upon
a commercial activity," we look to "those elements of a claim
that, if proven, would entitle a plaintiff to relief under his
theory of the case." Saudi Arabia v. Nelson, 507 U.S. 349,
357 (1993).
A garnishment proceeding would require appellant to dem-
onstrate two principal elements. To obtain a writ of garnish-
ment, appellant would need to show the amount of the debt
owed by Kestell to her and the judgment giving rise to that
debt. D.C. Code s 16-501(c)(1)-(2). To levy the writ on the
Bank as garnishee, appellant would have to demonstrate that
the Bank owed wages to Kestell. Id. s 16-544. Neither of
these elements relates to a commercial activity of the Bank.
The judgment appellant seeks to enforce arises out of Kes-
tell's desertion of her and the resulting grant of divorce by
the Maryland state court. Kestell, though an agent of the
Bank, certainly cannot be said to have engaged in these
marital (or more accurately, "anti-marital") activities in his
official capacity as an agent of the Bank. See Jungquist v.
Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1028
(D.C. Cir. 1997) ("[T]he relevant inquiry in determining
whether an individual was acting in an official capacity focus-
es on the nature of the individual's alleged actions."). Nor is
the Bank's payment of wages to Kestell a commercial activity.
See Broadbent v. Organization of Am. States, 628 F.2d 27, 34
(D.C. Cir. 1980) (holding that an international organization's
employment of civil servants, regardless of their nationality,
is not a commercial activity).
Because neither of these principal elements of a garnish-
ment proceeding rests on a commercial activity of the Bank,
the commercial activities exception would not apply and the
Bank would remain immune from jurisdiction under the
general rule of 28 U.S.C. s 1604. The judgment of the
district court is
Affirmed.